Rosenberg v Fifteenth Eestin Nominees Pty Ltd - [2007] VSC 101

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 7433 of 2004

EMANUEL ROSENBERG AND GLEN OAK NOMINEES PTY LTD (ACN 110 045 737)	Plaintiffs
v
FIFTEENTH EESTIN NOMINEES PTY LTD, (ACN 005 291 832), SABRINA PHILLIPA BERGER AND IAN BARRY BERGER	Defendants

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JUDGE:	HABERSBERGER J
WHERE HELD:	MELBOURNE
DATES OF HEARING:	1-3, 6-9, 14-17, 20, 21, 23, 27, 28, 30 MARCH 2006
DATE OF JUDGMENT:	27 APRIL 2007
CASE MAY BE CITED AS:	ROSENBERG v FIFTEENTH EESTIN NOMINEES PTY LTD
MEDIUM NEUTRAL CITATION:	[2007] VSC 101

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Equitable or Promissory Estoppel – Whether father was estopped from removing trustee of discretionary trust and changing will because of representations and promises allegedly made to daughter and son-in-law – Reliance – Detriment – Unconscionability – Whether constructive trust of his assets established.

Trusts – Removal of trustee of discretionary trust for alleged breaches of trust – Whether breaches warranted removal.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr PB Murdoch QC with Mr SH Parmenter	B2B Lawyers
For the Defendants	Mr GR Ritter QC with Mr R Greenberger	Kalus Kenny

HIS HONOUR:

Introduction

This proceeding arose out of an unfortunate dispute between members of the same family over the ownership and control of certain valuable assets.

On 15 July 2004 the first plaintiff, Emanuel Rosenberg ("Mr Rosenberg"), by a Deed of Removal and Appointment purported to remove the first defendant, Fifteenth Eestin Nominees Pty Ltd ("Fifteenth Eestin"), as trustee of The E Rosenberg Investment Trust ("the Investment Trust") and to appoint in its place the second plaintiff, Glen Oak Nominees Pty Ltd ("Glen Oak"). At that time Fifteenth Eestin had three directors – Mr Rosenberg, his daughter, Sabrina Phillipa Berger, and her husband, Ian Barry Berger. By virtue of their numbers, Mr and Mrs Berger controlled Fifteenth Eestin, which refused to acknowledge its removal and to deliver up the trust documents, property and income as directed by Glen Oak.

Accordingly, on 6 August 2004, the plaintiffs commenced this proceeding by originating motion. It was subsequently ordered that Mr and Mrs Berger be added as defendants and that the proceeding continue as if commenced by writ, with pleadings to be served. Nevertheless, because affidavits had been filed in respect of the originating motion and an interlocutory application for the appointment of a receiver, it was ordered that evidence in chief be given by way of affidavit. Yet further affidavits were filed prior to the hearing. The result was that the evidence in chief of each of the principal witnesses consisted of a number of affidavits filed over a considerable period of time.

The plaintiffs' primary claim was that, as the sole remaining appointor of the Investment Trust, Mr Rosenberg was entitled under its provisions to remove Fifteenth Eestin as trustee and to appoint Glen Oak in its stead. In the alternative, the plaintiffs relied in their statement of claim on a number of alleged breaches of trust as grounds for the removal of Fifteenth…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rosenberg v Fifteenth Eestin Nominees Pty Ltd

Details

AGLC: Rosenberg v Fifteenth Eestin Nominees Pty Ltd [2007] VSC 101
Case: [2007] VSC 101
Decision Date: 27 April 2007

CaseChat Overview and Summary

Rosenberg v Fifteenth Eestin Nominees Pty Ltd involved a dispute between a father and his daughter and son-in-law. The daughter and son-in-law alleged that the father, who was the settlor of a discretionary trust, was estopped from removing the trustee and changing his will due to representations and promises made to them. They claimed reliance, detriment, and unconscionability, seeking to establish a constructive trust over the father's assets. The court was tasked with determining whether equitable or promissory estoppel applied and whether the father's removal of the trustee was justified.

The legal issues before the court included whether the father's representations and promises to the daughter and son-in-law were sufficient to create an estoppel, whether the daughter and son-in-law had relied on these representations to their detriment, and if the father's actions were unconscionable. Additionally, the court had to decide whether the father's removal of the trustee was warranted by breaches of trust.

The court found that the father's representations and promises did not amount to an estoppel because there was no clear and unequivocal promise relied upon to the detriment of the daughter and son-in-law. The court also determined that the father's removal of the trustee was justified due to alleged breaches of trust. As a result, the daughter and son-in-law's claims for estoppel and constructive trust were dismissed.

The court ordered that the daughter and son-in-law's claims for equitable estoppel and constructive trust were dismissed, and the father's removal of the trustee was upheld. No further orders were made.

Orders